On 9 October 2015, Wikileaks released the final text of the IP chapter in the Trans-Pacific Partnership. Jamie Love provided comments via twitter.
https://twitter.com/jamie_love
Updated: 9 October 2015
(In the order posted)
- Wikileaks has the October 5, 2015 version of the #TPP IP Chapter. https://wikileaks.org/tpp-ip3/WikiLeaks-TPP-IP-Chapter/WikiLeaks-TPP-IP-Chapter-051015.pdf
- #TPP patents on [at least one] “new uses of a known product, new methods of using a known product, or new processes of using a known product
- Good news. “nothing in this Chapter limits a Party’s rights and obligations under Article 31 of the TRIPS Agreement” #TPP
- #TPP: If unreasonable delays in issuance of patents, adjust the term of the patent to compensate for such delays
- #TPP: an unreasonable delay is more than five years from the date of filing of the patent application
- #TPP. compensate patent owner for unreasonable curtailment of the effective patent term as result of delays in marketing approval for drugs
- #TPP: Party may make available additional sui generis protection to compensate for unreasonable curtailment of effective patent term
- #TPP drug test data monopoly is 5 years from date of marketing approval territory of the Party
- #TPP, the test data monopoly is 5 years for new products, and 3 years for new indications.
- #TPP language on exceptions to the test data monopoly is a reference to the WTO 2001 Doha Declaration (which does not deal with test data)
- For biologic drug test data, #TPP members either grant 8 years, or deliver a “comparable outcome in the market” through “other measures…
- #TPP Basic minimum copyright term is “life of the author and 70 years after the author’s death”
- #TPP copyright 3-step test includes helplful Article QQ.G.16(b)
- #TPP 3-step test “neither reduces nor extends” exceptions permitted by TRIPS, Berne, WCT or WPPT
- #TPP: “Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system”
- #TPP, give consideration to copyright exceptions for: criticism; comment; news reporting; teaching, scholarship, research, blind, etc.
- Major #TPP f*ck up. No exceptions for high standards for damages for infringement. Article QQ.H.4.4. Nukes Orphan works, several US laws
- Depending upon #ISDS interpretation, #TPP injunctions language maybe not too f*cked up, but who knows.
- Special #TPP provisions on copyright damages completely nuke June 2015 Register of Copyright proposal for orphan works.
- Australia FAQ: Will the Intellectual Property Chapter of the #TPP be subject to investor-state dispute settlement? No.
- USTR telling Congress, and Australia echoing that ISDS does not apply to #TPP IP chapter. Incredible carve-out if true.
- #TPP criminal sanctions for copyright infringement on commercial scale, even when not carried out for commercial advantage or financial gain
- The article on the copyright term in the #tpp includes 4 footnotes.
- #TPP Footnote 79. nothing prevents promoting certainty for legitimate use, exploitation of works during terms of copyright protection
- The notion put forth by AU and USTR that the entire #TPP IP chapter is not subject to #ISDS needs to be verified.
- Earlier versions of #TPP investment chapter say that IP is covered asset, but provided limited #ISDS carve-out for exceptions to rights.
- Earlier #ISDS carve-out limited to revocation, limitation, creation of intellectual property rights, to extent consistent with #TPP & TRIPS
- Among the several conflicts with #TPP provisions on damages: 28 U.S.C. § 271 Infringement of patent, (e)(6)(B), regarding biologic drugs.
- Among conflicts with #TPP provisions on damages, 35 U.S.C. § 287(c)(1) Limitation on damages for medical practitioner, health care entity
- Among conflicts with #TPP provisions on damages: 42 U.S.C. § 2184. Injunctions? measure of damages
- Among the conflicts with #TPP provisions on damages: State sovereign immunity in the United States.
- Among conflicts with #TPP provisions on damages: https://www.youtube.com/watch?v=RbVQZa85xVQ …
- Among conflicts with #TPP provisions on damages: https://www.youtube.com/watch?v=xAY4Ua7B2mQ …
- Among conflicts with #TPP provisions on remedies for infringement: 28 U.S.C. § 1498(b)